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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This unfair labor practice case is before the
Authority on exceptions filed by the General Counsel and the Respondent to the
attached decision of the Administrative Law Judge. No opposition was filed by
the General Counsel or the Respondent.

The complaint alleges that the Respondent violated section 7116(a)(1),
(5), and (8) of the Federal Service Labor- Management Relations Statute (the
Statute) when it failed to furnish the Union with information requested under
section 7114(b)(4) of the Statute. The Judge found that the Respondent violated
section 7116(a)(1), (5), and (8) of the Statute when it failed to furnish the
Union with certain of the requested information but that the Respondent did not
violate the Statute by failing to furnish other information.

Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the Judge made
at the hearing and find that no prejudicial error was committed. We affirm the
rulings. Upon consideration of the Judge's decision and the entire record, we
adopt the Judge's findings, conclusions, and recommended order only to the
extent consistent with this decision.

II. Facts

The facts, which are fully set forth in the Judge's decision, are
summarized here.

During the fall of 1989, the Respondent assigned Supervisory Customs
Inspector Jerome Long to conduct a survey of the overtime practices and
procedures at ports and facilities within the Miami District. The survey,
referred to as the "Long Report," discussed and evaluated the assignment of
overtime at various locations and recommended certain shift changes and
reallocations of personnel.

In the fall of 1990, the Respondent formed a panel, composed of
senior-level managers from Washington, D.C., to evaluate the management of
overtime at regional and district levels. The panel conducted on-site field
surveys of Miami and other districts and ports concerning all aspects of
overtime. The panel issued a report, referred to as the "Overtime Report,"
containing findings, recommendations, and an action plan with due dates for
various actions to be taken by various management officials.

On February 22, 1991, the Respondent notified the Union of certain
overtime assignment and shift changes that would become effective March 10,
1991. The Union requested to bargain over the impact and implementation of the
proposed changes and also requested various documents from the Respondent,
including copies of the Long Report and the Overtime Report. The Respondent
refused to provide the requested documents, claiming that they were exempt from
disclosure under section 7114(b)(4) of the Statute as "inter- management
communications . . . ." G.C. Exh. 6 at 1.

The Judge found that the Long Report addressed overtime practices and
procedures at various locations within the Miami District and contained
analysis of and recommendations concerning the assignment of overtime. The
Judge concluded that the Long Report was necessary, within the meaning of
section 7114(b)(4) of the Statute, because "it covered details in respect to
the very issue which would be the subject of negotiations[]" between the
Respondent and the Union and that the Respondent violated the Statute by
failing to provide the Union with a copy of the report.(3) Judge's Decision at 8.

The Judge found that the Overtime Report was not necessary for the
Union to engage in bargaining. According to the Judge, although the Overtime
Report contained "specific instructions and actions to be taken by management
officials with respect to overtime management[,]" the report did not "include
data or information which the Union could consider in its negotiations with
Respondent . . . ." Id. at 11. The Judge concluded that the Respondent
did not violate the Statute by refusing to furnish a copy of the Overtime
Report.

IV. Positions of the Parties

The General Counsel excepts to the Judge's findings regarding
the Overtime Report. The General Counsel claims that the Overtime Report is
necessary, within the meaning of section 7114(b)(4) of the Statute, for the
Union to discuss, understand, and negotiate over the Respondent's shift and
overtime assignment changes. According to the General Counsel, the Respondent
"made specific proposals based on the [Report] and made references to it
throughout the entire negotiation process over overtime procedures." G.C.'s
Exceptions at 3.

The Respondent excepts to the Judge's failure to conclude that
disclosure of the Long Report would violate "the deliberative process
privilege" incorporated in Exemption 5 of the Freedom of Information Act
(FOIA), 5 U.S.C. § 552. Brief in Support of Respondent's Exceptions at 5.
The Respondent also contends that it was not required to disclose the Long
Report because the Union did not establish a "'particularized need'" for the
document, as required by the court's decision in National Labor Relations
Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA),
reversing and remanding in partNational Labor Relations Board,
38 FLRA 506 (1990) (NLRB). Brief in Support of Respondent's Exceptions
at 5.

V. Analysis and Conclusions

At the outset, we reject the Respondent's argument that the Long Report
is protected from disclosure to the Union by Exemption 5 of the FOIA, 5 U.S.C.
§ 552(b)(5).(4) It has long been established that the FOIA does not prohibit
release of any data. It merely permits agencies to withhold from release data
falling within its exceptions. For exampleDepartment of the Army
Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North
Carolina, 26 FLRA 407, 412-13 (1987).

The issues raised by the exceptions in this case are whether the Long
Report and the Overtime Report are necessary, within the meaning of section
7114(b)(4) of the Statute.

In National Park Service, National Capital Region, United States
Park Police, 48 FLRA No. 127 (1993)(Member Talkin concurring in part and
dissenting in part) (National Park Service), we addressed the standard
we will apply to determine whether certain intramanagement documents are
necessary, within the meaning of section 7114(b)(4) of the Statute. In
particular, we adopted the court's decision in NLRB v. FLRA, and stated,
as relevant here, that:

[A]n agency is not obligated to provide a union with requested
documents containing advice, guidance, counsel, or training materials provided
for management officials under section 7114(b)(4) of the Statute unless the
union demonstrates a particularized need, as discussed by the court [in NLRB
v. FLRA], for such information.

National Park Service, 48 FLRA No. 127, slip op. at 10. We noted
that the court in NLRB v. FLRA set forth two examples of instances where
a union could establish a particularized need for intramanagement advice,
guidance, counsel, or training: (1) those where a union has a grievable
complaint covering the information; and (2) those where a requested document
creates a grievable action. We also noted that, as no other bases on which to
find a particularized need were asserted in that case, it was unnecessary to
address what bases other than the two examples would support a finding of
particularized need.

In this case, it is clear that both the Long Report and the Overtime
Report constitute advice, guidance, and/or counsel provided for management
officials. Both reports were created at the request of management for use by
management in making decisions regarding, among other things, the assignment of
overtime. Moreover, both Reports contain recommendations regarding, among other
things, assignments of overtime, allocations of personnel, and shift changes.
In this connection, the Respondent asserts a specific interest in refusing to
disclose the reports in order to "encourage open and frank discussions by
protecting the confidentiality of advisory opinions, recommendations, and
deliberations . . . ." Brief in Support of Respondent's Exceptions at 9.

Consistent with our decision in National Park Service, it is
necessary to determine whether the Union has established a particularized need
for the requested information. The Judge noted, in this respect, that there was
an "absence of any evidence adduced by the Union as to such particular need."
Judge's Decision at 11. However, the Judge also noted that, at the time of the
hearing and the Judge's decision, the Authority had not adopted the court's
decision in NLRB v. FLRA and "[n]o burden ha[d] been imposed upon a
union to establish a 'particularized need' in order to obtain the [requested]
information." Id.

In these circumstances, we find that the complaint in this case must be
remanded to the Judge for further proceedings. On remand, absent settlement,
the Judge should provide an opportunity for the parties to address whether the
Union has a particularized need for the requested information. In this regard,
we do not address what circumstances, in addition to the two examples set forth
by the court in NLRB v. FLRA, may establish such need.(5)

VI. Order

The complaint is remanded to the Judge for further proceedings.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. Member Talkin's separate concurring
opinion is found at note 5 below.

2. The Judge noted that there was no
dispute that the requested documents were normally maintained and reasonably
available. As the Respondent does not except to these findings, we will not
address them further.

3. The Judge also concluded that,
although the Long Report contained recommendations concerning overtime, the
report was not exempt from disclosure under section 7114(b)(4)(C) of the
Statute because the recommendations did not relate to collective bargaining. As
no exceptions were filed on this point, we will not address it further.

4. Exemption 5 provides that an agency
is not required under the FOIA to disclose:

inter-agency or intra-agency memorandums or letters which would not
be available by law to a party other than an agency in litigation with the
agency[.]

5 U.S.C. § 552(b)(5)

5. For the reasons stated in my partial
dissent in National Park Service, I disagree with the position adopted
by my colleagues that in cases of this nature a union must demonstrate a
particularized need for requested information that conforms to the standard set
forth in NLRB v. FLRA. In National Park Service, I also
articulated a definition of necessity that I would apply in determining whether
a union has established that requested information is necessary so as to
require disclosure under section 7114(b)(4)(B) of the Statute. Given the
circumstances of this case, I agree that a remand would be helpful in adducing
evidence to assist the Authority in determining whether the requested
information should be disclosed, regardless of the standard applied to reach
that result.

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424

U.S. CUSTOMS SERVICE, REGION IV, .
MIAMI, FLORIDA
Respondent .

and
Case No. 4-CA-10904

NATIONAL TREASURY
EMPLOYEES UNION
Charging Party

Peter A. Quinter, Esq.
For the Respondent

Godfrey E. Goff, Esq.
For the General Counsel

Before: WILLIAM NAIMARK
Administrative Law Judge

DECISION

Statement of the Case

This case arises under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. section 7101 etseq., (herein called the
Statute). It is based on a charge filed on September 3, 1991 by the
National Treasury Employees Union (herein called the Union)1/
against U.S. Customs Service, Region IV, Miami, Florida (herein called the
Respondent).

Pursuant to a Complaint and Notice of Hearing issued on September 23,
1991, by the Regional Director, for Region IV, Federal Labor Relations
Authority, a hearing was held before the undersigned on December 17, 1991
at Miami, Florida.

The Complaint alleged, in substance, that on August 20,2/
NTEU Chapter 137 President Reta Grant requested from Respondent: (a)
a copy of the Regional Implementation Plan; (b) a copy of the preliminary
study performed by SCI3/ Jerome Long. It was
further alleged that the data requested was needed in regard to negotiation
over a change in hours at the Miami International Airport. Further, that
since August 20, 1991 Respondent has not supplied the requested information
and has refused to comply with section 7114(b)(4) of the Statute - all in
violation of section 7116(a)(1)(5) and (8) thereof.

Respondent's Answer duly served on October 21, 1991, admits that the
data was not supplied and that it is not prohibited from disclosure by law.
It denies that the information is necessary for full and proper discussion,
understanding and negotiation of subjects within the scope of bargaining.
Further, it denied that the date does not constitute guidance, advice,
counsel, or training provided for management officials to supervisors,
relating to collective bargaining. The commission of any unfair labor
practice is also denied.

All parties were afforded full opportunity to be heard, to adduce
evidence, and to examine as well as cross-examine witnesses. Briefs were
filed which have been duly considered.

Upon the entire record, from my observation of the witnesses and their
demeanor, and from all of the testimony and evidence adduced at the
hearing, I make the following findings and conclusions:

Findings of Fact

1. At all times material herein the National Treasury Employees (NTEU)
has been, and still is, the exclusive representative of an appropriate unit
of Respondent's employees.

2. At all times material herein Chapter 137 has been, and still is, an
agent of NTEU for representing unit employees at the Respondent's Miami,
Florida location.

3. During the fall of 1989 Ralph C. Muser, Assistant District Director,
Inspection and Control, of Respondent became concerned that overtime
charges had increased greatly during the past several years. Accordingly,
he designated Jerome Long, Supervisory Customs Inspector, to conduct a
survey re assignment of overtime at the various ports of the Miami
District. Muser was interested in determining whether the local procedures
and practices were in compliance with law and regulations.

4. Long began working on the overtime survey around November or December
1989. The survey by Long, referred to as the "Long Report",
covered overtime at the various ports, branches and Ft. Lauderdale Airport
in the Miami District. It includes the mention of practices at these sites
with respect to assignments of personnel and overtime, options to
assignments of personnel to overtime, evaluations and opinions, as well as
recommendations re shift changes and reallocation of the workforce. It
covered the various types of vessels or ships and aircraft operating at the
different ports and facilities.

5. The "Long Report" was never the subject of a final report
by Muser. Record facts show it was not completed nor adopted as policy by
management, and no changes by Respondent were made as a result of the
report.

6. In the fall of 1990 headquarters, U.S. Customs formed a Blue Ribbon
Panel to study the ways to effectively manage overtime. It was composed of
a group of senior mana-gers organized at Washington headquarters who were
to evalu-ate overtime policies and procedures. It was formed to conduct an
on-site field survey of Miami and other districts and ports concerning all
aspects of overtime. The Panel issued a report containing findings and
recommendations as to the management of overtime. These were endorsed by
management, and a group or committee of high level officials was formed to
determine how to implement the findings of the Panel. The committee made
various recommendations to manage and control overtime at the Regional and
District levels.4/

7. The Blue Ribbon Panel's overtime report provided for an Action Plan
with due dates for each action. This plan implemented the Blue Ribbon Panel
overtime Report which, in turn, was referred to during negotiations with
the union. The Action Plan is also referred to as the Regional
Implementation Plan. It consists of three parts and is designated as a plan
for Managing Overtime For Increased Public Service. The Plan calls for
action to be taken by Regional Commissioners, District Directors and other
management officials. Due dates for such actions are specified. Actions are
directed in respect to various items. They include alignment of Staff to
Workload, Sunday and Holiday Overstaffing, Automated Information System,
Monitoring Overtime, Quantifying Overtime Costs, and Reducing Review of
Entries By Inspectors.

8. Under date of February 22, 1991 Director Knapik wrote Reta Grant,
President of NTEU, Chapter 137, that certain adjustments in overtime
assignments, as well as shift assignment changes, would be made effective
March 10, 1991.

9. After receipt of this notice, Grant requested that Respondent bargain
over the impact of the proposed changes.

10. In a letter dated February 28, 1991 the Union requested 17 items
from Respondent in response to Knapik's notice re the intended changes.
Included in the request were the following:

(a) A copy of any relevant reviews of overtime procedures conducted at the
District, Region or Headquarter levels pertaining to this issue.5/

(b) A copy of the Miami District overtime survey conducted by SCI
Jerome Long concerning overtime practices and money saving proposals.

11. Respondent replied in a letter dated March 15, 1991 stating that the
material, which was under review, would be delivered, if appropriate, by
March 20, 1991.

12. On April 2, 1991 Respondent wrote Grant and stated, in
substance, that (a) the only data which could be described as overtime
reviews, as requested, are intermanagement communications representing
deliberations and ideas between managers. This would not be provided. Data
re patterns of overtime use was attached and provided. Other data
concerning workload information and overtime records has been and remains
available to the Union and (b) the overtime survey of the Miami District by
Supervisor Long was not completed and is intermanagerial correspondence as
in (a), supra.

13. By letter dated April 8, 1991 the Union repeated its request for the
data, referred to above, which management designated as intermanagement
communications.

14. In May 1991 the parties began negotiations over the impact and
implementation of the change in overtime shift proposals. During
negotiations management referred to the request by the Union for the two
items heretofore specified, and refused to provide the data for the same
reason theretofore given.6/

15. Union representative Grant spoke to Lennie Dorman, Regional EMS
Staff Officer, on several occasions in an attempt to clarify the
information which the Union sought from Respondent.

16. The record reflects that on August 23, 1991 Grant wrote the
Authority and stated that, as suggested, she called Dorman and requested
(a) a copy of the Regional Implementation Plan developed as a result of the
Blue Ribbon Report, (b) the overtime study performed by SCI Jerry Long.

17. Respondent refused to provide copies of these two documents. In
respect to negotiations, the parties were at impasse at the time of this
hearing.

Conclusions

The ultimate issue for determination is whether Respondent violated
section 7116(a)(1), (5) and (8) of the statute by failing and refusing to
provide the Union, as requested, with copies of the "Long Report"
and the Regional Implementation Plan which were overtime studies or
surveys.7/

General Counsel contends that both documents should have been as
provided under section 7114(b) of the Statute, and Respondent failed to
comply therewith.

Respondent, in contending otherwise, argues that (a) they were not
"necessary" to the Union for a full discussion of collective
bargaining subjects; (b) the surveys were predecisional and part of the
deliberative process so as to be privileged; (c) section 7114(b)(4)(c)
allows the Agency not to disclose data which constitute guidance and advice
to management officials if it does not relate to a particular person
affected by the information.

Section 7114(B)(4) of the Statute obligates an agency to furnish a
union, upon request, and to the extent not prohibited by law, data which
(1) is normally maintained in the regular course of business; (2) is
reasonably available and necessary for discussion, understanding, and
negotiation of subjects within the scope of collective bargaining; and (3)
does not constitute guidance, advice, counsel or training provided for
management officials or supervisors, relating to collective bargaining.8/

It is well settled that, under section 7114(B)(4) of the Statute, the
exclusive representative is entitled to information that is necessary to
enable it to carry out its representational responsibilities. This includes
the investigation, evaluation and processing of grievances, as well as
fulfilling its duty in the negotiation or administration of a labor
agreement. Commander Naval Air Pacific, San Diego, California and Naval
Air Station, Whidbey Island Oak Harbor, Washington, 41 FLRA 662 673-674
(1991); U.S. Department of the Treasury, Internal Revenue Service,
Washington, D.C. and Internal Revenue Service, Chicago, Illinois District
Office, 40 FLRA 1070 (1991).

Turning to the instant case, the General Counsel insists that the
studies made by Respondent ("Long Report" and Regional
Implementation Plan) were needed to enter into meaningful negotiations
concerning the impact and implementation of the proposed changes. While
Respondent did furnish many of the 17 items requested by the Union on
February 28, 1981, that did not relieve management from supplying the two
studies which it refused to furnish. It is also insisted that neither
document constitutes guidance, advice, counsel, or training provided for
management officials or supervisors relating to collective bargaining.
Further, that even if the data requested is part of management's
deliberative processes, disclosure thereof is not precluded.

The "Long Report"

There is no contention that the documents are not normally maintained
and reasonably available. It is also conceded in the Answer that disclosure
is not prohibited by law. However, Respondent does maintain that disclosure
of the Report was not necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of collective
bargaining.

The information contained in the "Long Report" dealt with the
practices and procedures re overtime and assignments at the various ports
and locations within the Miami District. Further, it included certain
options and recommendations with respect to assignments concerning
overtime. The Respondent advised the Union that it intended to make changes
involving shift changes and also overtime adjustments. Moreover, management
notified the Union that it would negotiate as to the impact and
implementation of the proposed changes.

The facts as appear herein lend considerable weight to a conclusion that
the data in this Report was necessary for the Union to fulfill its
representational functions. Becoming apprised of the various procedures at
the ports concerning overtime, as well as the shift assignments, could
indeed bear on proposals made by the Union in connection with proposed
changes. Since the survey re overtime concerned detailed facts as to the
assignment of overtime to different classifications, the Union could
utilize its content to frame proposals and negotiate the impact resulting
from the changes to be made by management.

Respondent adverts to the fact that the survey by Long was never
completed and, moreover, is to be characterized as purely
"background" information which plays no part in management's
final decisions on this issue. It is also contended that no grievance is
involved herein, and that the changes do not affect a particular
employee so as to reflect a particular need for the information. These
arguments are not meritorious. Irrespective of whether the Report was
finalized or not, it covered details in respect to the very issue which
would be the subject of negotiations. The proposed changes by management
deal with practices and procedures presently in effect. If changed by
Respondent the Union would need to consider existing practices for
intelligent negotiation re such changes. Management does not contest its
authenticity, and, moreover, it contains more than mere background
material. Considerable facts relative to the overtime practices and
existing shifts are set forth which will have a bearing on proposals and
counterproposals during negotiating sessions. See Commander Naval Air
Pacific, supra. Further, the absence of a pending or potential
grievance re overtime does not call for a conclusion that the information
was not needed. There is no requirement that the information requested
under section 7114(b)(4) of the Statute be used in a grievance. See National
Labor Relations Board, 38 FLRA 506.

The foregoing persuades me that the data requested by the Union, i.e.,
the "Long Report," was necessary in the Union to fulfill its
representational duties in regard to the negotiations concerning the impact
and implementation of Respondent's proposed changes in shift and overtime
assignments.

An additional issue concerns the possible exemption from disclosing the
"Long Report" because it contains guidance, advice, counsel or
training for management officials allegedly relating to collective
bargaining process - all as set forth in section 7114(b)(4)(C) of the
Statute

While there is a dispute as to whether this Report does include such
guidance, advice or training for Respondent's officials, I am persuaded
that it did concern such items. In addition to setting forth the practices
re overtime at the ports and other locations, the document contains
evaluation of assignments as well as options to the procedures in use.
Recommendations are made in certain instances as to overtime assignments,
which is conceded by Respondent.9/

It is however, necessary to determine whether the guidance, advice or
training relates to collective bargaining. If such relationship is found to
exist, an exemption from disclosure may well be warranted.

In National Relations Board, 38 FLRA 506, 522-23 (1990) the
Authority held that,

Section 7114(b)(4)(C) exempts from disclosure to the exclusive
representatives information which contains guidance, advice, counsel, or
training for management officials relating specifically to the collective
bargaining process, such as: (1) courses of action agency management
should take in negotiation with the union; (2) how a provision of the
collective bargaining agreement should be interpreted and applied; (3) how
a grievance or an unfair labor practice charge should be handled; (4)
other labor-management interactions which have an impact on the union's
status as the exclusive representative of the employees.10/

The survey conducted by Long, which was embodied in his Report, was
begun in November - December 1989. It was initiated by Assistant Director
of Inspection and Control, Ralph Muser, who was concerned as to whether
local practices and procedures were in compliance with law and regulations.
At this juncture Respondent had not notified the Union of any intention to
change shift assignments or make adjustments to overtime. Further,
negotiations re the changes were not begun until May 1991, several months
after

Respondent did notify the Union of its intent to make changes. The
record reflects that the overtime survey was started independent of any
collective bargaining negotiations. Muser was disturbed about the increase
in overtime changes and wanted a self-evaluation of the practices and
procedures at the various installations. The record indicates that the
"Long Report" was never intended to be used in negotiations with
the Union on the impact and implementation of the changes in shift
assignments or overtime usage. The Report did not involve negotiations or
the collective bargaining process, nor was it relied upon in order to
bargain over such changes. These factors impel me to conclude that the
document was, as the record reflects, distinct and separate from the
bargaining process.11/ Thus, I conclude the
"Long Report" did not constitute guidance, advice, counsel or
training relating to collective bargaining so as to be exempt from
disclosure.

Note is taken of the recent case, N.L.R.B. v. Federal Labor Relations
Board, 952 F.2d 523 (D.C. Circuit 1992) in which Judge Edwards stated
that the FLRA erred in failing to recognize that "necessary" is
not the same as "relevant". Further, that where information is
sought under section 7114(b)(4)(B), there must be a particularized showing
of need for information on guidance, advice, counsel, or training for
management officials if such information is not otherwise exempt under
subsection (b)(4)(c). The Court concluded that it was not shown that a
particularized need existed for the document at issue; that the Authority's
argument for disclosure was conclusionary; and that neither the
administrative law judge nor the Authority found that the requested
recommendations were required by the parties' bargaining agreement as their
established practices. Accordingly, the case was remanded to the Authority
to decide whether the information was "necessary" under section
7114(b)(4)(B).

As heretofore indicated, the case law as established by the Authority
requires that an agency disclose information deemed necessary for a union
to fulfill its representational functions. If the data is not otherwise
exempt from disclosure under section 7114(b)(4)(c) - as is true herein -
the Authority has determined whether the data would be necessary for the
union to perform its duties. No burden has been imposed upon a union to
establish a "particularized need" in order to obtain the
information. Since the Authority has not overturned its holdings in this
regard. I am constrained to follow past decisioned law in the public
sector. Accordingly despite the absence of any evidence adduced by the
Union as to such particular need. I conclude that the record does warrant
the conclusion that the information was necessary for the union to fulfill
its functions as the representative of the unit employees.

On the basis of the foregoing, I conclude that the "Long
Report" was necessary under section 7114(b)(4)(B) for the Union to
bargain re the impact and implementation of the proposed changes by
Respondent in shift changes and overtime; that Respondent was required by
section 7114(b)(4) to furnish the "Long Report" and its failure
to do so violated section 7116(a)(1)(5) and (8) of the Statute.

The Regional Implementation Plan (Action Plan)

General Counsel deems this document to be "necessary" under
section 7114(b)(4) in like manner as the "Long Report" heretofore
mentioned. I disagree. This Plan sets forth specific instructions and
actions to be taken by management officials with respect to overtime
management. It does not, as was true in the "Long Report,"
include data or information which the Union could consider in its
negotiations with Respondent concerning the changes in shift assignments or
overtime. It is clearly an intra-management document outlining action to be
taken by Headquarters and the various Regional Commissioners and District
Directors.

The Action Plan contains no information that will enable the union to
bargain on the impact and implementation of the changes which were to be
made by Respondent. The data included in the Action Plan was not necessary
for the Union to prepare for any negotiations regarding such changes since
no information therein pertains to shift changes or overtime details and
practices. There is an insufficient link between the representational
duties or needs of the Union and the bargaining to be conducted on the
shift assignments and overtime modifications. Accordingly, I conclude
Respondent did not fail to comply with section 7114(b)(4) of the Statute,
nor violate section 7116(a)(1)(5) and (8) thereof, by failing and refusing
to furnish the Union with the Regional Implementation, or Action Plan.

Based on the foregoing findings and conclusions, it is recommended that
the Authority issue the following Order:

ORDER

Pursuant to section 2423.29 of the Rules and Regulations of the Federal
Labor Relations Authority and section 7118 of the Statute, it is hereby
ordered that the U.S. Customs Service, Region IV, Miami, Florida, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the National Treasury Employees
Union, the exclusive representative of certain of its employees, a copy of
the "Long Report" that was requested on or about February 28,
1991.

(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.

2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:

(a) Furnish the National Treasury Employees Union, the exclusive
representative of certain of its employees, a copy of the "Long
Report."

(b) Post at its facilities in Miami, Florida, copies of the attached
notice or forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by the Regional
Commissioner, Southeast Region, Miami, Florida, and shall be posted in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted, and shall be maintained for 60
consecutive days thereafter. Reasonable steps shall be taken to ensure that
such notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.20 of the Authority's Rules and
Regulations, notify the Regional Director,

Region IV, Federal Labor Relations Authority, in writing, within 30 days
from the data of this Order, as to what steps have been taken to comply
herewith.

Issued, Washington, DC, July 22, 1992

_____________________WILLIAM NAIMARK
Administrative Law Judge

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to furnish, upon request of the National Treasury
Employees Union, the exclusive representative of certain of our employees,
a copy of the "Long Report" that was requested on or about
February 28, 1991.

WE WILL NOT in any like or related manner, interfere with, restrain, or
coerce employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute.

WE WILL furnish the National Treasury Employees Union, the exclusive
representative of certain of its employees, a copy of the "Long
Report."

________________________
(Activity)

Dated:_________ By:__________________________
(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of
posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the Regional
Director of the Federal Labor Relations Authority, Atlanta Regional Office,
whose address is: 1371 Peachtree Street, NE, Suite 122, Atlanta, GA 30367,
and whose telephone number is: (404) 347-2324.

_______________________________________

ALJ's FOOTNOTES

1/ NTEU and Chapter 137 will both be designated at
times as the Union.

2/ The Complaint fails to specify the year when the
request was made. Note is taken that Respondent's Answer alleges
that on August 20, 1991 Grant requested information relating to the
assignment of overtime.

3/ Supervisory Customs Inspector.

4/ Record facts show that because of the comprehensiveness of the
reporting requirements of the Blue Ribbon Panel, as initiated by
Headquarters, the "Long Report" was held in abeyance. The
"Long Report" was given to Muser and Director Knapik only and not
utilized for collective bargaining.

5/ As understood by both parties, this item refers to the
Regional Implementation Plan which is hereinafter described.

6/ Both the "Long Report" and the Regional
Implementation Plan, although not furnished to the Union, were made
available at the hearing for inspection by the General Counsel. They were
marked as Joint Exhibits 1 and 2 and submitted under seal for an incamera
inspection and to be submitted to the Authority.

7/ At the hearing the General Counsel stated that the "Long
Report" and the Regional Implementation Plan (Action Plan) were the
two documents which the Union contends it sought and were not furnished by
Respondent.

8/ Respondent conceded at the hearing that the data requested
herein is normally maintained in the regular course of business and is
reasonably available. It also admitted in the Answer that the disclosure is
not prohibited by law.

9/ Respondent maintains the Report is predecisional, made by a
supervisor with no decision-making authority, and does not contain agency
policies or guidelines. This does not, in my opinion, militate against
finding it constitutes guidance or counsel for management officials. It was
conducted upon direction of management and accepted as reliable report of
overtime procedures and practices.

10/ The Authority followed this holding in Department of
Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol,
Dallas, Texas, 41 FLRA 137 (1991).